Protecting Protestors’ First Amendment Rights, or Silently Supporting a Government’s View? Charlottesville Under the Government Speech Doctrine

Photo Credit: Courtesy of Stephen Melkisethian

By Sarah Rozek; Staff Member (Vol. 16)

Charlottesville, a city in West Central Virginia, has a population of more than 200,000. It was not, however, the city’s size, its great selection of wineries, or its world-class university which made it into the headlines this year. Rather, it was the “Unite the Right” torchlight rally, which started on a Saturday night in August, and that “would prove to be the catalyst for a horrific 24 hours in this usually quiet college town that would come to be seen by the nation and world as a day of racial rage, hate, violence and death.”

The rally was organized by white supremacists to protest the removal of the statue of Robert E. Lee from Emancipation Park in Charlottesville. The rally proved to be deadly with violent confrontations erupting between the “Unite the Right” protesters and counter-protesters. One person was left dead after a car plowed into a group of counter-protesters, and at least 34 people were wounded in the clashes. However, it was not just the protests or their deadly aftermath that captured the nation that day. News of police inaction and allegations of police’s failure to protect protesters, coupled with President Trump’s condemnation of violence on “many sides” were what left pressing questions and doubts in many people’s minds.

Some people and media sources questioned whether the police force had “stand down” orders, but Charlottesville’s Police Chief Al Thomas rebuffed these claims as false. However, given the volume and gravity of the claims and the President’s statements following the deadly events, one is left to wonder whether the police’s failure to effectively interfere and protect protesters could be considered a form of action, or in this case inaction, that qualifies as government speech and therefore, is protected from First Amendment scrutiny under the Government Speech Doctrine.

1. Government Speech Doctrine and how it Protects the Government from First Amendment Scrutiny.

Government speech is as old as our democracy; however, the Government Speech Doctrine is “relatively new, and correspondingly imprecise.” The doctrine provides that when the Government speaks, it is exempt from First Amendment scrutiny. This is logical; otherwise the Government could not function if it were subjected to attack on First Amendment grounds every time it chose one course of action over another. The U.S. Supreme Court articulated that “government statements (and government actions and programs that take the form of speech) do not normally trigger the First Amendment rules designed to protect the marketplace of ideas.”  The Court also explained that “as a general matter, when the Government speaks it is entitled to promote a program, to espouse a policy, or to take a position.”

The doctrine has been applied by the Supreme Court in Pleasant Grove City v. Summum, where the Government’s choice to accept or reject monuments donated by private parties to be placed in a public park was immune from First Amendment scrutiny. The Court reasoned that the choice to place a permanent monument in a park was a form of government speech not subject to scrutiny. Similarly, in Walker v. Tex. Div., Sons of Confederate Veterans, Inc., the Court held that the Texas Department of Motor Vehicles Board did not violate the Sons of Confederate Veterans group’s First Amendment right to free speech when it denied the organization’s application for specialty license plates featuring the Confederate battle flag. The Court reasoned that specialty license plates conveyed government speech, and therefore, were protected from scrutiny. More recently, the Court in Matal v. Tam refused to extend the doctrine’s protection to the U.S. Patent and Trademark Office’s claim that trademarks are some form of government speech.

The takeaway from these cases is that, while the doctrine is relatively new, it took no time at all for various government entities to claim its protection against First Amendment attacks. This is troublesome because the Government can use the doctrine to justify a controversial position or action, and the court is willing to “establish[] a precedent that threatens private speech that government finds displeasing.” As Justice Alito warned in his dissenting opinion in Walker v. Tex. Div., Sons of Confederate Veterans, Inc., the court categorized private speech, in that case a group’s choice of a specialty license plate, with government speech and “thus strip[ped] it of all First Amendment protection.”

The First Amendment protects the right to peaceably assemble, and it prevents government intrusion on our freedom of speech. However, if the Government takes certain actions that purportedly convey government policies or positions on a certain matter, these actions could be protected, and we “the People” would have no recourse on First Amendment grounds.

2. Would the Court Apply the Government Speech Doctrine to Police Action?

Historically, police’s excessive force was scrutinized by the courts as a violation of protesters’ First and Fourth Amendment rights. It could also be argued that the police’s choice to stay neutral was some form of protection of protesters’ First Amendment rights. However, when the Government, instead of taking proper action to protect protesters, chooses to take what seems to be a silent position, and its inaction results in violence and loss of a life, can this be tolerated as protection? What about the “chilling effects” this inaction might have in curbing future protests without fear of violence and lack of protection? And finally, can the government claim protection under the Government Speech Doctrine for its choice to stay neutral in the face of violence as a policy that is immune from scrutiny? So far, these questions remain unanswered by the courts.

It is difficult to anticipate what a court may rule if presented with the question whether police action, or inaction, could be considered some form of government speech or endorsement of a certain policy. There are also constitutional considerations, state statutes, and police rules and regulations that would come into play. However, given President Trump’s constant communication via Twitter endorsing certain views and news sources, and attacking those who dissent, there is little room needed to wonder what the current administration’s position might be. When the President speaks, the nation listens, and that includes the police force.